Legal History Commons^™

Litigating Birthright Citizenship In The Shadow Of World War Ii: The Continuing Relevance Of A Forgotten Case, Rachel E. Rosenbloom

Michigan Journal of Race and Law

With the question of birthright citizenship before the Supreme Court this term in Trump v. Barbara, this Article explores the last time that federal courts confronted an attempt to restrict birthright citizenship. It tells the story of two lawsuits, Regan v. King and Fisk v. Wade, filed in 1942 by organizations seeking to overturn United States v. Wong Kim Ark, the 1898 Supreme Court decision that affirmed the broad scope of birthright citizenship under the Fourteenth Amendment. While the cases left little mark doctrinally, their history sheds light on a dimension of birthright citizenship litigation that has …

The Vanishing Voice: Juror Disenfranchisement In Capital Cases And The Erosion Of Constitutional Protections, Yacenda Hudson

Michigan Journal of Race and Law

After years of battling to have an uninfringed right to vote and participate on a jury panel, the removal of the unanimity requirement for a death penalty recommendation threatens to disenfranchise minority jurors, thereby implicating the Sixth and Fourteenth Amendments. The death penalty is one of the most controversial issues in our society, and it has evolved over time. Due to a paradigm shift in beliefs, the death penalty’s constitutionality was challenged under the Eighth and Fourteenth Amendments. Pivotal legal decisions, such as Furman v. Georgia and Hurst v. Florida, required states to institute changes to the death penalty. …

Is Originalism Orthodoxy?, Neel Sukhatme

Articles

What theory of constitutional interpretation has the Supreme Court followed? We search Supreme Court opinions for a wide range of sources that originalists identify as central to their methodology, over the entire universe of cases beginning in 1791. We find that for much of Supreme Court history, conventional indicators of originalist practice--citations to Founding-era sources--are largely absent, raising questions about originalism's past orthodoxy. Originalist citation practices are absent for much of the 19th century and grow sharply in the late 20th century. The Article elaborates the implications of these findings for debates in constitutional law.

Human Rights, Between Peace And Dignity, Ryan Liss

Michigan Journal of International Law

Today, it seems self-evident that human rights are enshrined at the international level because they protect universal human dignity—a cosmopolitan entitlement that cannot be left to the contingencies of domestic law. The prevalence of this received wisdom, however, masks a fundamental transformation in the idea of human rights over the last century. When human rights were first enshrined in international law—during and following the Second World War— their international status was not seen to be justified primarily by the inherent dignity of persons, but by the instrumental role human rights were understood to play in securing interstate peace. This article …

The History Of The Constitution Is Our Future., Maggie Blackhawk

Michigan Law Review

The Constitution of the United States establishes a government; it also stands as the fundamental law of a people. It shapes daily life, distributes power, and sets a direction for the future. And yet when we ask about the reach and meaning of the Constitution, we are increasingly told to look backward. The answers to our future are said to lie in the past.

Immobilizing Migrants, César Cuauhtémoc García Hernández

Michigan Law Review

A review of The Migrant’s Jail: An American History of Mass Incarceration. By Brianna Nofil.

Michael Kunze, Rudolf Von Jhering. Das Unsichtbare Recht. Eine Biographie, Mathias W. Reimann

Reviews

Das Buch ist das Lebenswerk eines hochqualifizierten Amateurs. Auf dem Gebiet der Rechtsgeschichte ist Kunze ein Amateur im ursprünglichen Sinne des Wortes: jemand, der aus reiner Liebe zur Sache forscht und schreibt, nicht weil es sein Beruf ist. Von Beruf ist Kunze Librettist ‒ und als Autor der Texte vieler bekannter Schlager und mehrerer berühmter Musicals in seinem Metier, man kann es nicht anders sagen, ein Weltstar. Wenngleich Kunze also Rechtsgeschichte als eine Art Hobby betreibt, so arbeitet er doch auch hier in hochqualifizierter Weise. Das hat schon seine weithin bekannte, 1982 in München erschienene strafrechtsgeschichtliche Studie „Die Straße ins …

Courts Of Indian Offenses, Courts Of Indian Resistance, Alexandra Fay

Michigan Law Review

In the late nineteenth century, the Department of the Interior created the Courts of Indian Offenses with the express goal of eliminating elements of Native culture through the coercive power of criminal law. The courts stood on dubious constitutional grounds, were almost universally replaced by tribal courts in the twentieth century, and have been widely derided as crude assimilationist tools.

This Article examines the Courts of Indian Offenses to study how law and legal institutions operate as sites of colonial struggle. The Courts of Indian Offenses were formally created to criminalize Native culture. In practice, they were more complicated. Native …

Ten Commandments Cases: Learning From Reformation Coercion, Paul E. Mcgreal

Michigan Law Review Online

The Supreme Court’s recent embrace of “historical practices and understandings” in interpreting the Establishment Clause has emboldened states to challenge forty-five years of precedent prohibiting Ten Commandments displays in public schools. Yet, these states advance a version of history that mistakenly ignores European religious persecution that shaped how the Founders understood the establishment of religion. This Essay remedies that error through a novel historical analogy: sixteenth-century Catholic processions that forced Protestants to choose between betraying their conscience or marking themselves for persecution. Like modern students confronting state-mandated religious texts, Reformation-era dissenters faced orchestrated tests of faith designed to identify and …

Rethinking Transnational Adjudication: The Normative Foundations Of Institutional Design, Sanctions-Related Arbitration Frameworks, And Digital Recognition Systems, Avaskhan Asanaliyev

SJD Dissertations

This dissertation examines how emerging judicial and dispute resolution architectures can sustain cross-border commerce, investment, and enforcement in the post-Soviet space and beyond, at a time of institutional fragility, geopolitical tension, and rapid digitalization. Drawing on the experience of Kazakhstan, Russia, Ukraine, and key global hubs, it argues that institutional innovation in courts, arbitration, and enforcement mechanisms is central to rebuilding credible governance frameworks for international business. It does so through three interconnected studies that together explore the evolution of modern adjudication: first, through the transplantation of a common law judiciary model within a civil law state; second, through the …

The President And The Power Grid, Alexandra B. Klass, Dave Owen

Michigan Law Review Online

There is a sharp discontinuity between the second Trump Administration’s electricity policies and those of previous presidential administrations. President Trump has directed the Department of Energy to use statutory authority designed for wartime conditions and sudden emergencies to prevent electric utilities from retiring aging coal plants. In doing so, he has elevated the president’s role in electric-grid governance and reduced the primacy of the expert regulatory agency—the Federal Energy Regulatory Commission—that Congress authorized to govern electricity markets and grid reliability.

This Essay places these actions in historical context. It recounts the executive branch’s role in electricity policy during the first …

The Durability Of Protections Against Abuse At Interpol Amidst Rising Authoritarian Pressures, Kristina Daugirdas

Articles

Over centuries and across continents, authoritarian governments have demonstrated a large appetite for international cooperation to target political opponents across borders. In 1851, the “first modern police organization”—the Police Union of German States, whose members included Austria and Prussia—was established “with the express purpose of policing the political opposition of established autocratic regimes.” During the 1970s and early 1980s, military regimes in South America participated in a secret scheme known as Operation Condor to coordinate their efforts to suppress subversion. A recent analysis of twenty-nine “hard authoritarian” regional organizations found that twenty-five were engaged in police cooperation. The Shanghai Cooperation …

(Re)Birth Of A Nation: Reconstruction’S Unfinished Business, Zanita E. Fenton

Michigan Journal of Race and Law

The irony, alluding to the title of the 1915 silent movie Birth of a Nation, seeks to make conspicuous the counter-stories that more authentically account for the “birth” and development of American society. Ku Klux Klan-sponsored propaganda designed to evoke hyper-racist fearmongering and perpetuate sexual paternalism over White women, the plot from Birth of a Nation reflects the paradigmatic race-bait: relentless pursuit of a White woman by a Black man. This storyline was fictionalized, culturally unrealistic and deliberately omitted the very real sexual exploitation of Black women and girls. Birth of a Nation parallels Constitutional history that marginalizes supplemental …

An In-Depth Criticism Of Shaw V. Reno, Katherine M. Perez-Oviedo

Michigan Journal of Race and Law

If I have learned one thing from my semester taking Critical Race Theory, it is that the United States Supreme Court has repeatedly issued decisions that directly impede on remedial efforts to address past racial discrimination. When the question of “how can we use the law to instill social change?” is proposed in class discussion, it is difficult to imagine a world in which the Court would support the progressive measures suggested.

One Hundred Years Of Morales Y Benet V. La Junta Local De Inscripciones: The Use Of The Insular Cases To Deny Women’S Voting Rights In Puerto Rico, Joel Andrews Cosme-Morales

Michigan Journal of Gender & Law

The centenary of

Morales y Benet provides an opportunity to reflect on the inequalities women faced under Puerto Rican colonialism in the early 20th century, shaped by the legal imperialism of the United States over the archipelago. This article explores the holding in Morales y Benet v. La Junta Local de Inscripciones and its impact on women’s lives during the last 100 years.

The decision in

Morales y Benet came at a time when women in the mainland United States had already secured the right to vote, following decades of suffrage activism that culminated in the passage of the Nineteenth …

Disagreement And Historical Argument Or How Not To Think About Removal, Andrea Scoseria Katz, Noah A. Rosenblum, Jane Manners

University of Michigan Journal of Law Reform

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker.

This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal. It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the …

Trump V. United States And The Half-Originalist Presidency, Christine Kexel Chabot

University of Michigan Journal of Law Reform

The Supreme Court’s recent decision in Trump v. United States has been criticized for its ahistorical approach to presidential immunity. This Essay offers the first account of the historical mismatch between the Trump Court’s decision to immunize presidential removal power and Founding era conceptions of the presidency. Unlike the presumptive immunity that the Court recognized for most other official presidential acts, the immunity afforded for presidential removal power is absolute. The Court ruled that the President’s “unrestricted power of removal” can never be regulated by Congress or considered as evidence of wrongdoing, even when the President threatens removal to effectuate …

The Misuse Of Ratification-Era Sources By Unitary Executive Theorists, Jed Handelsman Shugerman

University of Michigan Journal of Law Reform

This symposium essay suggests that, given an ostensibly originalist Supreme Court, the future depends on getting the past right. The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.

The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for …

Independent Justice? U.S. Attorneys As A Case Study Of Political Appointments, Jennifer L. Selin, Lauren Mattioli

University of Michigan Journal of Law Reform

Concerns over presidential use of federal prosecution as a political weapon and the overall independence of the Department of Justice have increased in recent years. While most scholarship exploring the potential for political prosecution has focused on the legal and political forces that influence prosecutorial discretion, few studies have identified the varying ways that federal prosecutors obtain their jobs or how those processes affect who serves as U.S. Attorney. This is a consequential oversight, as U.S. Attorney appointments provide an informative case study of the legal frameworks, historical conventions, and politics that influence presidential appointments more generally.

In this Article, …

Economic Sanctions As Legal Ordering, J. Benton Heath

Michigan Journal of International Law

This article recovers a critical episode in the history of economic sanctions and considers its implications for international legal order. Beginning in 1905, a group of Chinese citizens launched a series of protests targeting American, British, and Japanese goods. These boycotts caused economic damage, disrupted international relations, and at times won significant political victories. At the same time, they captured the imaginations of peace advocates, lawyers, and scholars, who saw in the boycotts either a fundamental threat to legal ordering, a promising avenue for enforcing interstate peace, or, most radically, an engine for new kinds of political organization outside the …

Federal Communications Commission V. Consumers' Research: Brief Of Julian Davis Mortenson And Nicholas Bagley As Amici Curiae In Support Of Petitioners, Julian Mortenson, Nicholas Bagley

Appellate Briefs

Julian Davis Mortenson and Nicholas Bagley are professors at the University of Michigan Law School. Mortenson is a specialist on the history of executive authority and the separation of powers. Bagley is a leading scholar in administrative law. They are the co-authors of Delegation at the Founding, 121 Colum. L. Rev. 277 (2021), a leading article examining Founding- era constitutional principles regarding legislative delegations of authority, and Delegation at the Founding: A Response to the Critics, 122 Colum. L. Rev. 2323 (2022).

What’S Left Of The New Deal State?, Sandeep Singh Dhaliwal

Michigan Law Review Online

A vast body of scholarship situates itself in the New Deal era. Another extensive collection explores the history of criminal justice in the United States. To date, however, there has been little effort to bring these conversations together. New Deal Law and Order, written by legal historian Anthony Gregory, fills this conspicuous gap. Gregory remarkably narrates the New Deal era through the lens of President Franklin Roosevelt’s “war on crime” (p. 1), challenging how we think about both the New Deal’s legacy and the foundations of the modern security state.

John P. Davis And The Joint Committee, Pamela A. Izvănariu

Michigan Journal of Race and Law

This Article uses archival research and social movement theory to recover a critical but untold story about how John P. Davis innovated novel modes of organizational mobilization and multidimensional advocacy to build power and movement at the intersection of race and the economy in the Jim Crow and New Deal era. It examines Davis’s mobilization of the Joint Committee on National Recovery (JCNR), recovers the mobilization and advocacy models Davis engineered, and tells of the fight Davis and the JCNR waged to achieve racial and economic justice and effect a new— and truly emancipatory—New Deal.

Memory, Resistance, And Doubt, Richard Primus

Articles

Burroughs v. United States is not a famous case. But it could be. Its central character was a famous man. James Cannon, Jr., was a bishop in the Methodist church, a player in the worlds of business and banking, a ruthless political power broker, and a zealous Prohibitionist. In Virginia, where he lived, his role within the Democratic Party earned him the informal title of “the dry boss of the state,” and his influence extended well beyond the Old Dominion. Indeed, the essayist H.L. Mencken identified Cannon as the most important Prohibitionist in the country. “More than any other man,” …

Physicists As Environmental Experts, Rachel Rothschild

Articles

The question of which scientists are qualified to provide expert guidance in legal controversies is a perennial debate among scholars, judges, and lawyers. Scientists who participate in legal disputes can achieve enormous power and influence, not only over the case at hand but over long-term developments in legal doctrine. While these issues arise in many areas of the law, environmental litigation has been a particularly active site of contestations over epistemic authority. Courts have frequently relied on scientists to understand whether the government is justified in regulating pollution and who may be liable for environmental and public health harms.

This …

Was The Niit A Treaty Override?, Reuven S. Avi-Yonah

Articles

Three court decisions have recently addressed the interaction of the NetInvestment Income Tax (NIIT) and U.S. tax treaties. The issue waswhether the treaty provided an independent basis for crediting a foreigntax against the NIIT, because no such credit is available under the Code.First,in Toulouse, the Tax Court held that there was no treaty-based credit.Second,in Christensen, the Court of Federal Claims held that a treaty-based credit wasavailable, distinguishing Toulouse.Third, in Bruyea, the Court of Federal Claimsissued a broader opinion that allowed the credit.

Inventing Birthright: The Nineteenth-Century Fabrication Of Jus Soli And Jus Sanguinis, Sam Erman, Nathan Perl-Rosenthal

Articles

Formal membership in a state has been an essential political status for well over a century. It is typically gained at birth, either jus soli or jus sanguinis. Jus soli assigns nationality by birth in a nation's territory; jus sanguinis assigns children their parents’ nationality. This article provides an alternative intellectual history of the modern dominance of these principles for attributing nationality. Contrary to prior scholarship, soli and sanguinis were not restatements of existing principles. The soli/sanguinis binary was a nineteenth-century invention. Old-regime European empires attributed membership in the community under one or another single natural law principle. Parentage and …

Original Public Meaning And Pregnancy’S Ambiguities, Evan D. Bernick, Jill Wieber Lens

Michigan Law Review

Relying on 1868 abortion statutes, the 2022 Supreme Court held in Dobbs v. Jackson Women’s Health Organization that no federal constitutional right to abortion exists. Mere months later, a petition for certiorari asked the Court to determine that “person” in the Fourteenth Amendment includes prenatal existence, which would require criminalization of abortion in all states. The petitioners cited Dobbs and claimed the authority of legal history in 1868 and before. These arguments will be heard again, and they are increasingly framed in terms of the “original public meaning” of the Fourteenth Amendment.

This Article refutes these arguments on their own …

Federal Indian Law As Method, Matthew L. M. Fletcher

Articles

Morton v. Mancari is well-known in Indian law circles as a foundation for the tribal self-determination era, which is generally understood to have begun in the late 1960s and early 1970s. The case involved an Act of Congress that required the federal “Indian Office” (now called the Bureau of Indian Affairs) to grant preference in employment to “Indians.” The case is typically understood as the basis for analyzing how federal statutes that apply exclusively to Indian people do not implicate the anti-discrimination principles of the United States Constitution. This understanding of the case, while correct, is too narrow.

Grágás And The Legal Culture Of Commonwealth Iceland, William Ian Miller

Book Chapters

The subject of this chapter is Grágás, the compilation of the laws of Iceland in the Commonwealth period. The chapter begins by outlining the court structure of Iceland and the fundamentals of legal procedure, briefly discussing the importance of law to the conversion narrative in Íslendingabók and its account of the first decision to put Iceland’s laws into writing. It describes the distinctive concepts and customs which underlie the legal system of medieval Iceland, looking at the role of the búi (neighbour) in legal procedure, and explaining the key concepts of helgi (the right of inviolability), grið (domicile, or household …